Wardlaw v. Ford Marketing Corp.

In an action to recover damages for wrongful death, etc., plaintiff appeals from an order of the Supreme Court, Suffolk County, dated June 25, 1975, which granted defendants’ motion for leave to serve an amended answer setting forth, as an affirmative defense, that plaintiffs intestate failed to mitigate damages by his nonuse of a seat belt or other restraining device. Order affirmed, without costs or disbursements. Approximately five months after the Court of Appeals held, in Spier v Barker (35 NY2d 444), that nonuse of a seat belt may be considered in arriving at a determination as to whether a plaintiff used due care to mitigate any injury likely to be sustained as a result of an accident, the defendants made the within motion for leave to amend their answer to interpose an affirmative 611 defense alleging that the decedent was guilty of that nonfeasance. In our opinion, such a brief interval did not prejudice the plaintiff and, under the circumstances, is insufficient to warrant denial of the defendants’ motion (see Hrusko v Public Serv. Coordinated Tr. Corp., 40 AD2d 659; see, also, Amin v McGuire, 43 AD2d 578). Cohalan, Acting P. J., Damiani, Rabin, Titone and Hawkins, JJ., concur.